Judgment date: 13 February 2012
Insurance Australia Limited t/as NRMA Insurance v Falco [2012] NSWSC 5
Supreme Court of New South Wales1
In Brief
- An agent of the Proper Officer may perform the non-discretionary clerical tasks of reducing reasons to writing and furnishing or supplying those reasons to the parties, provided that it is clear that the reasons for the decision are those of the Proper Officer.
- A Case Manager has no delegated authority to determine an application and any comment that is attributed to a Case Manager that is part of the determinative process, exceeds the power of the Case Manager.
- Adequate reasons for a conclusion are required by the Proper Officer when making a determination, pursuant to MAS Guideline 14.8.
- The test that stood prior to the amendment of s 62 of the Motor Accidents Compensation Act 1999 (NSW) (the Act) in October 20082 , may no longer be applicable, as it is necessary to have regard to the additional requirements made by s 62(1A).
Background
Ms Falco sustained injury, including psychiatric injury, in a motor vehicle accident on 1 March 2004. She had previously sustained a psychiatric injury in a motor vehicle accident on 1 December 2003.
Following referral of the matter to the Medical Assessment Service (MAS), Ms Falco was assessed by Medical Assessor McClure on 27 March 2007 and 11 December 2009.
In the March 2007 assessment, Medical Assessor McClure found that Ms Falco suffered from an adjustment disorder with mixed anxiety and depressed mood, causally related to the motor vehicle accidents. She was assessed with a whole person impairment of 5%, apportioned 60% to the accident on 1 March 2004 and 40% to the accident on 1 December 2003.
On 16 February 2009, Dr Parmegiani, Psychiatrist, qualified for Ms Falco, opined that she developed a major depressive disorder and assessed whole person impairment arising from the disorder at 47%.
In December 2009, Medical Assessor McClure considered that Ms Falco's mental status had significantly changed since his prior assessment and diagnosed major depression with melancholia, a condition generally accepted as a constitutional disorder. Assessor McClure considered that the condition was unrelated to either motor vehicle accident.
A report was obtained from Dr Law, Ms Falco's treating psychiatrist, following the December 2009 assessment by Assessor McClure. Dr Law diagnosed Post Traumatic Stress Disorder and attributed the condition to both accidents.
Subsequently, Ms Falco obtained further reports from Dr Parmegiani, who diagnosed a major depressive disorder which he considered was a complication of Post Traumatic Stress Disorder. Dr Parmegiani assessed Ms Falco with the same whole person impairment of 47% arising from her injury as was assessed in February 2009. He considered that Ms Falco's symptoms and associated impairment did not alter since February 2009.
In February 2011, an Application for Further Assessment pursuant to s 62(1)(A) of the Act was lodged on behalf of Ms Falco, alleging additional relevant evidence on causation and deterioration of her psychiatric condition following from the reports of Dr Law and Dr Parmegiani.
NRMA Insurance opposed the Application on the grounds that the report of Dr Law did not add anything further to the issue of causation and that Assessor McClure had reviewed the notes of Dr Law, although he noted that they were partly illegible. Further, NRMA submitted that a report of Dr Law to Dr Sarfraz, which set out the history of the accidents with records of subsequent consultations, was before Medical Assessor McClure at the time of assessment.
NRMA also submitted that there was no evidence that Ms Falco's condition had deteriorated, noting Dr Parmegiani's assessment of Ms Falco's whole person impairment had not changed between February 2009 and 21 October 2010, the more recent date that an assessment was undertaken. By letter dated 21 March 2011, a Case Manager for the Proper Officer of MAS, notified Ms Falco of the Proper Officer's determination that the matter would be referred for further medical assessment.
Supreme Court Proceedings
On 6 September 2011, NRMA filed an Amended Summons seeking that the determination be set aside and sought:
- An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decisions of the Proper Officer.
- An order in the nature of prohibition or, alternatively, an injunction preventing the MAA or any of its officers, servants or agents from acting on or taking any further step in reliance on the decisions or either of them.
- An order in the nature of mandamus remitting the Section 62 Application to MAA for reallocation of the matter to a different proper officer for determination of the matter according to law.
NRMA submitted that the decision concerning Ms Falco's further assessment should be set aside on the following grounds:
- The letter did not comply with the requirements of the Medical Guideline 14.8 and that it was not provided to the parties by the Proper Officer.
- The Case Manager had no actual or apparent authority to write to the parties or to make any relevant decision on the Section 62 Application.
- The reasons attributed in the letter from the Proper Officer were inadequate as they comprised only statements of conclusions and not the reasons for the decision.
- Reference and reliance on a passage from Glover-Chambers v Motor Accidents Authority of New South Wales3 in the letter, related to an earlier scheme which was subsequently amended. The wrong legal test was applied as a result of its reliance on that passage.
Further to the above submissions, NRMA submitted that the Case Manager from whom the determination appeared to have been provided had no delegated authority to decide the Application. Further, whilst various conclusions were stated by the Proper Officer in the determination, the reasons for those conclusions were not provided.
Determination
His Honour held, provided it is clear that the reasons for the decision are those of the Proper Officer, the agent of the Proper Officer may perform the non-discretionary clerical tasks of reducing the reasons to writing and furnishing or supplying those reasons to the parties, citing O'Reilly v State Bank of Victoria Commissioners4.
His Honour considered the wording of the determination dated 21 March 2011 and held that the comment in the letter was attributed to the Case Manager, which appeared to be part of the determinative process, exceeding the power of the Case Manager.
His Honour held that the determination did not provide adequate reasons prior to forming a conclusion, or that the evidence considered in the determination would have had a material effect on the question of causation.
His Honour held that the reference to the passage quoted from Glover-Chambers v Motor Accidents Authority of New South Wales was correct as the law stood prior to the amendment of s 62 of the Act in 2008. However, after that amendment, it became necessary to have regard to the additional requirements made by s 62(1A) of the Act. His Honour considered that the wrong legal test may have been applied as a result of relying upon that passage. As it appeared that the Case Manager placed reliance upon the passage, rather than the Proper Officer, an error of law occurred.
His Honour held that the matter should be remitted to the Motor Accidents Authority for redetermination.
Implications
The case reinforces the obligations a Proper Officer must adhere to when providing a determination.
Whilst non-discretionary clerical tasks can be delegated to Case Managers, a determination must include adequate reasons when a conclusion is made.
A determination must be made by a Proper Officer and must adhere to the Medical Guidelines pursuant to s 65(1) of the Act.
It is evident that a review of not only a Proper Officer's determination in relation to issues of further relevant information or deterioration is necessary, but also a review of the source of the determination and the capacity in which that person acts in making or providing a determination to the parties.
Footnotes
1 Hislop J, 13 February 2012
2 Glover - Chambers v Rey & MAA [2010] NSW
SC 17, McCallum J "Provided that the relevant threshold is
met, the final assessment of the additional information is a matter
for a medical assessor".
3 [2010] NSWSC 17 [25] - [ 26]
4 (1983) 153 CLR 1 per Mason J
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